Dzhokhar Tsarnaev Is Not an Enemy Combatant, and Other Truths Republicans Don’t Want You to Understand

Sometimes, people who don’t know what they’re talking about should really just keep quiet.

That thought certainly came to mind after the successful takedown of the two brothers who law enforcement said were responsible for the Boston Marathon bombing. The F.B.I. agents and police officers who killed one of the men and captured the other in less than a week were truly amazing. But then the chattering classes emerged, quickly showing that fools, demagogues, and the uninformed were happy to shove real heroes offstage in hopes of snagging the spotlight as they preened with their cubic-zirconia version of toughness.

First, when word got out that the brothers were of Chechnyan descent, some Americans went online to rage against . . . the Czech Republic. There were calls for the United States government to “nuke” the Republic (not the first time, I guess, that we would attack the wrong country in the name of fighting terrorism).

This madness was so widespread that Petr Gandalovič, the Czech Republic’s ambassador in Washington, felt compelled to make a statement politely suggesting that perhaps Americans might want to read some maps before calling on their government to bomb a country they don’t know. “The Czech Republic and Chechnya are two very different entities,” Gandalovič said. “The Czech Republic is a Central European country; Chechnya is a part of the Russian Federation.”

But, of course, everyday Americans can be ignorant of the world they live in without significant consequences. The same cannot be said for our political leaders who rapidly rushed out in front of the cameras to vomit up irrational, uninformed comments regarding the country they supposedly help run, tub-thumping about rules, history, and events they seem not to understand. Or for media figures with enormous followings and the ability to rouse massive public ire. First, those kings of national-security reporting—Glenn Beck and Sean Hannity—marched into the center ring to proclaim the big scandal: one of the original suspects in the bombing was being deported to Saudi Arabia.

The Saudi, Abdul Rahman Ali Alharbi, had decided to do what conservatives found to be incredibly suspicious: run away from the bombing after he was injured (the same thing that hundreds of white people did without raising concern). Alharbi was tackled, hospitalized, and questioned, and then law enforcement moved on.

Not so the conservative pundits. Beck and Hannity proclaimed that the Obama administration had decided to deport Alharbi, which led to the usual lunacy in the conservative ether that the young man was tied to al-Qaeda. Hannity said he had “confirmed” the deportation story with his “sources” in Washington, leading him to question why the Obama administration would so quickly send someone out of the country who might be linked to the bombing or other terrorist activities.

Beck went further, proclaiming that Alharbi was a “dirt bag” who was potentially the ringleader in the bombing. By Friday, April 19, Beck proclaimed that he considered Alharbi “Suspect number 1,” despite the fact that Alharbi had been cleared, and then pulled out the conservative catnip by calling for impeachment.

“[Obama-administration officials] have covered this up,’’ Beck said on his radio program. “They have aided and abetted this guy . . . It’s criminal, it’s out of control, and when America knows the full story on this, if she doesn’t stand up and quite honestly, I think, demand impeachment and mass firing if not shutting down of agencies, we don’t stand a chance.”

Sounds bad. Lucky thing it’s 100 percent false.

Days before Beck’s Friday rant, law enforcement put out the word that the rumors in the conservative dream machine were wrong—the Saudi was a witnessto the bombing, not a suspect. As for the deportation story, it also was completely untrue. Alharbi’s name, of course, had been transliterated. (Arabic names do not directly translate into English, which is why the same person can have different spellings of the same name. Example: Osama/Usama bin Laden/Binladen/Bin Ladin, etc.) And the version of Alharbi’s name in the media was similar to the name of someone completely different who was being held for deportation by Immigration and Customs Enforcement. The man, who was being deported because his visa had expired, had nothing to do with the Boston bombing.

Of course, why believe the federal law-enforcement agencies whose investigators were putting their lives on the line in pursuit of the realbad guys, when a couple of talk-show hosts speaking from their comfortable, air-conditioned studios disagreed? And so, in their endless search for another faux Obama scandal, Republican lawmakers decided to spit on the real heroes by suggesting these honorable men and women were part of a vast conspiracy to cover up something or other for some reason that made no sense but certainly suggested impeachment might be in order.

On April 19, the same day as Beck’s call for impeachment, Representative Jeff Duncan—the South Carolina Republican and supposedly a serious person who sits on the Homeland Security Committee in the House—decided to pick up the “intelligence” being shoveled out from conservative talk shows. During a congressional hearing that day, Duncan demanded that Janet Napolitano, secretary of Homeland Security, provide more information about the latest conservative conspiracy theory regarding the Saudi man and his deportation.

“I am unaware of anyone who is being deported for national-security concerns at all related to Boston. I don’t know where that rumor came from,” Napolitano replied, adding that the Saudi student was neither a suspect nor a person of interest.

I miss the era when that would have been enough, and when a congressman would be bright enough to know that radio hosts are not intelligence sources. But no, Duncan pressed on, more interested in driving the country apart with manufactured conspiracies if it stood the chance of staining Obama.

“Wouldn’t you agree with me that it is negligent for us, as an American administration, to deport someone who was reportedly at the scene of the bombing, and we are going to deport him, not to able to question him any more—is that not negligent?” Duncan asked, apparently trusting Beck more than the F.B.I., I.C.E., and Napolitano.

Napolitano snapped back. “I am not going to answer that question. It is so full of misstatements and misapprehensions that it is just not worthy of an answer,” she said, going on to add that “there has been so much reported on this that has been wrong, I can’t even begin to tell you, Congressman.”

Still not good enough for Duncan, who has pressed on in his effort to be declared the dumbest member of Congress and the most unfit person to ever sit on a committee involved in American security. Well, except for the other members of the committee.

Duncan, along with committee chairman Michael T. McCaul, Peter King of the Subcommittee on Counterterrorism and Intelligence, and chairman Candice Miller of the Subcommittee on Border and Maritime Security, sent a letter to Napolitano that same day demanding a classified hearing so they could be briefed on Alharbi. While acknowledging that Napolitano had strongly swatted down the entire theory as garbage, the Republicans were not satisfied because—well, because Glenn Beck was still riling up the conservative base with tales of dark conspiracies.

“Media reports have continued to be raised about this individual and adjustments that have been made to his immigration status, including possible visa revocation and terrorist watch-listing in the days following the bombing,” the letter read.

Now, let’s follow this lunacy through to its obvious end result. With the continued efforts to whip up the nuttiest of the conspiracy addled, Beck, Duncan, McCaul, King, and Miller are doing their absolute best to place a target on the back of Alharbi, a man who did nothing wrong other than being the wrong skin color in the wrong place at the wrong time. I will say it now—it is utterly predictable that Alharbi could be harmed because of these reckless people hell-bent on creating another bogus Obama scandal, even if it means demeaning the dead and injured in Boston. If so, whatever happens is on their heads.

Second, if you were Alharbi, what would you do? You bet—get on the first plane out of the United States, where supposed “statesmen” insist on labeling you a murderer because a college-dropout, self-described borderline schizophrenic, and former Top 40 D.J. says you are. If I were Alharbi, I would be scared for my safety because of this recklessness, and if he has the courage to stay, he will earn my admiration. But if he goes, don’t be surprised if the departure caused by the Becks and Duncans of the world will be portrayed by them as part of a conspiracy, followed by see-we-told-you-so-let’s-impeach-Obama ranting.

Not all of the error-filled statements were as despicable and downright evil as the attacks on Alharbi. Others were just illogical ideas apparently being thrown out as red meat to conservatives who might not know any better.

Soon after the capture of Dzhokhar Tsarnaev, a naturalized American citizen and the surviving brother suspected of being one of the bombers, prominent Republicans started demanding that the Obama administration take specific legal actions. In a series of public statements, senators Lindsey Graham of South Carolina, Kelly Ayotte of New Hampshire, Saxby Chambliss of Georgia, John McCain of Arizona, and (again) Peter King of New York, all demanded that Tsarnaev be deemed an enemy combatant.

Now, for those of you who have listened to American lingo regarding terrorists over the past decade, the phrase “enemy combatant” (actually, the correct phrase for terrorists unaffiliated with a country’s military is “unlawful enemy combatant”) might sound familiar.

While the term has been around for more than a century, it was enshrined into the public debate on November 13, 2001, when, in the aftermath of the 9/11 attacks, former president George W. Bush issued an order stating that, when appropriate, terrorists should be tried before military commissions rather than in criminal courts. Notice, though: it’s when appropriate.

And the Bush administration decided that there were plenty of times that it was not appropriate to send a terrorist to a military commission, usually when the investigation of the suspect had little connection to intelligence gathering but was instead the result of a normal shoe-leather inquiry by the F.B.I. Remember Zacarias Moussaoui, widely described (incorrectly) as the 20th hijacker for the 9/11 attacks? In fact, Moussaoui was directly affiliated with al-Qaeda and was in contact with Khalid Sheikh Mohammed, the 9/11 mastermind. In other words, Moussaoui was a terrorist right at the heart of the largest attack against civilians in American history.

But Bush didn’t send Moussaoui to a military commission. Instead, he made the specific choice to try him in civilian court. The moment of that decision is depicted in my book 500 Days: Secrets and Lies in the Terror Wars.

Seasoned oak crackled in the fireplace of the Oval Office on the morning of December 10. Ashcroft and Bush were there, separated only by the Presidential desk built from planks of the 19th century British frigate, HMS Resolute.

“Mr. President,” Ashcroft said, “I have been discussing this issue with my senior staff, and recommend that Zacharias Moussaoui be tried in civilian court by the Department of Justice.”

This was the man suspected of being a 20th hijacker for the 9/11 attacks, Ashcroft said, but who had already been arrested weeks before the strike. Bush had stated that military commissions were another option and that, when appropriate, terrorism trials would be conducted in civilian court. That would be the best choice for Moussaoui. This would be the first suspected al Qaeda member tied to 9/11 who would be brought to justice. A public trial would allow the American people to have a greater understanding of the evil facing the country.

“This case has already been presented to a grand jury,” Ashcroft said. “We are ready to indict, as soon as tomorrow.”

“If this was handled in a criminal court, civilian criminal court, would national security be endangered?” Bush asked. “Would sources or methods be compromised?”

“No, sir,” Ashcroft replied.

Moussaoui had been arrested by the F.B.I., inside the United States. Proper criminal procedures had been followed—Moussaoui had been read his rights, no searches had been conducted without warrants, and only civilian law enforcement had been involved in the case. No intelligence agencies played any direct role in the investigation.

Ashcroft finished his presentation. Bush nodded thoughtfully.

“I agree,” he said.

Notice, Bush raised a key question: would a criminal prosecution endanger national security or intelligence gathering techniques? And when the answer was no—the same answer likely to be found with Dzhokhar Tsarnaev, since almost the entire case has been handled by cops so far—he sent Moussaoui to civilian court.

And the response from the Republicans in Congress when Moussaoui was declared a criminal, rather than an unlawful enemy combatant? Silence. In fact, it was the Democrats who raised the most questions about the decision, arguing that taking Moussaoui to criminal court showed the military commissions weren’t needed.

The criticism didn’t lead Bush to abandon civilian courts. In fact, almost without exception, Bush directed that everyhigh-profile case involving an al-Qaeda terrorist captured in the United States be tried in the civilian courts. Remember Richard Reid, who attempted to detonate explosives he was carrying in his shoes on a flight from Europe to the United States on December 22, 2001? He is currently residing at a federal supermax prison in Colorado after being sentenced to life in a civilian court. Moussaoui is there with him at the prison, formally named United States Penitentiary, Administrative Maximum Facility. So are a slew of other al-Qaeda terrorists—Ahmed Omar Abu Ali, convicted in 2005 in a civilian court of plotting to assassinate George W. Bush; Iyman Faris, who pleaded guilty in 2003 to a plot to blow up the Brooklyn Bridge; Dritan Duka, convicted in a 2007 plot to kill American soldiers stationed at Ft. Dix, New Jersey; and so on. Jose Padilla, who was arrested in 2002 on suspicions that he plotted to use a radiological bomb in the United States, was at first declared an enemy combatant, but his case was moved to criminal court, where he was tried, convicted, and sentenced on different terrorism charges.

And that’s not all—in fact, according to a recent report by the Center on Law and Security at New York University School of Law, about 800 suspected terrorists were taken to criminal court during the Bush administration.

All of this unfolded without much criticism from the G.O.P. members of Congress. But then something dramatic changed on January 20, 2009: a Democrat took the White House. And suddenly those same congressfolk decided that bringing terrorists to trial in civilian court placed the entirety of the United States in grave danger. In other words, they became blaring hypocrites desperately trying to undermine an American president by politicizing efforts to combat terrorism, flexing faux muscles in hopes of winning over voters who didn’t know that these blatherers were frauds.

The G.O.P.-ers raged when Ahmed Khalfan Ghailani, one of the al-Qaeda conspirators involved in the 1998 East African Embassy bombings, was brought from the Guantanamo detention center to the United States for trial in criminal court. They proclaimed that his conviction on one count, rather than all of them, showed that civilian courts couldn’t be trusted. Ghailani is now serving life at Supermax—again, like Reid, Moussaoui, and all the others locked up there during the Bush years. (Interesting side note: Ghailani begged to be sent back to Guantanamo; it was, he said, nicer than American prisons. I guess, by trying to give America’s enemies what they want, Republicans are soft on terrorists or hate our freedoms or something.)

Then there was that fellow who attempted to detonate a bomb he was carrying in his clothes on a flight from Europe to the United States in December 2001. Yes, Richard Reid, the shoe bomber . . . oh wait, wrong guy. It wasn’t in his shoes—it was in his underwear. His name wasn’t Richard Reid—it was Umar Farouk Abdulmutallab. It wasn’t 2001—it was 2009. Other than that nearly *every single element of the case was the same.*Same month, both intended to kill passengers flying for Christmas, both on transcontinental flights from Europe, both on American commercial airliners, both Islamic fundamentalists dedicated to bin Laden and his followers. Neither one was declared an enemy combatant by the president, and both were charged criminally.

Then again, there was one big difference. When Reid was sent to a civilian court, Bush, the Republican, was president. When the same decision was reached for Abdulmutallab, Obama, the Democrat, was president. So of course, the Republicans proclaimed, Obama was endangering America by doing the same thing Bush did in an almost identical case. Of course, they didn’t put it that way. Look at the words of Republican senator George LeMieux, who seems blissfully unaware that Obama simply followed the (correct) precedent set by Bush, or who simply didn’t care about his inconsistency so long as he could scare his constituents into thinking the Democratic White House was putting them in danger:

Affording enemy combatants like Abdulmutallab access to our civilian court system damages our nation’s ability to gather critical intelligence information. We should not provide unearned and undeserved rights to terrorists intent on killing civilians. This is yet another indication of the Obama administration’s stubborn insistence to turn the global war on terror into a law enforcement effort.

O.K., so intellectual consistency is not strong with the Republicans on this issue. (And remember how, every time anyone criticized a decision made by Bush after 9/11, the G.O.P.-ers screamed that the objector was aiding the terrorists? That, too, went out the window when Obama took over.)

But there is another big point that consistently gets overlooked when Republicans bang the drum about military commissions—*they haven’t worked.*Even as hundreds of criminal cases against terrorists have gone to court, only seven—yes, seven—military-commission trials have been held. Seven in 12 years.

While David Addington, former vice president Cheney’s counsel, has been unfairly depicted as a demon who cared nothing about the rights of suspected terrorists, he anguished over the fact that so many of the people held at Guantanamo had not been afforded a trial, one member of the administration told me. And that was in 2002; the suspects had been held for less than a year, at that point. Another 11 years have passed since then, and some of the same people still languish there without having been convicted of anything.

That just feeds into the obvious conclusion that military commissions are a failed experiment. Or, as retired rear admiral John Hutson put it, “Military Commissions are a failed experiment.”

Hutson, who served as the navy’s judge advocate general from 1997 through 2000, was an early supporter of the military-commission system set up by Bush. But, unlike too many politicians, he has paid attention to the spoilage coming out of the commission meat grinder and concluded that there is no place for the concept anymore. Last year, he wrote:

When President Bush issued an order authorizing them, my instinct was not to be overly concerned. But it soon became clear that these commissions would be like no other in our history, playing fast and loose with the law in ways that give military justice a bad name.

Of course, in the years since military commissions were first adopted, procedures have improved. But that, Hutson says, hasn’t overcome their significant shortcomings, problems that don’t occur in civilian courts.

Just because the military commissions have gotten better, doesn’t make their use lawful or smart as we look ahead to how we should deal with future terrorism suspects . . . Unlike military commissions, federal courts have a long history of handling international terrorism cases, including when suspects are picked up abroad or accused of terrorism-related crimes committed outside the U.S. These cases, at times complex and problematic from a rights perspective, have not been prohibitively difficult for prosecutors and judges, who have made use of permissive procedural rules to admit at trial a wide variety of incriminating evidence without compromising sensitive national security information.

So, why do Republicans always demand (since January 2009) that suspected terrorists be declared enemy combatants and tried before nearly inoperable military commissions, particularly when Obama’s policies are almost identical to Bush’s? There is no other possible explanation: it is pure politics, designed to make Obama appear weak on terrorism.

Which brings us to the case of the suspected Boston Marathon bomber Dzhokhar Tsarnaev. I can’t think of a better example of Republican duplicity and disingenuousness in the invocation of the need for an enemy-combatant designation. Put simply, if Obama had decided to ignore the law and listen to the Republicans in their political hooting, there is a decent chance that a prosecution of Tsarnaev in anyforum might be derailed.

Tsarnaev is a naturalized American citizen, having become one on September 11, 2012 (yes, conspiracy theorists, start grimacing). Don’t let the adjective “naturalized” distract you; under the law, Tsarnaev is a citizen, with all the rights afforded any other American. Why is that important? Because Bush decided, in the very order establishing military commissions, that it would not apply to Americans. Here’s the language straight out of the order:

The term “individual subject to this order” shall mean any individual who is not a United States citizen . . .

You don’t even have to read the whole sentence of Bush’s order to understand that Tsarnaev can’tbe designated an enemy combatant and sent off for trial before a military commission. As for Guantanamo, Bush also established the precedent that American citizens would not be held there. That’s why when the Bushies discovered that Yaser Esam Hamdi—a man captured on the Afghan battlefield and shipped to Guantanamo—was a natural-born citizen, he was promptly flown back to the United States.

The reason for this is simple: American citizens have rights under the Constitution. Lawmakers cannot willy-nilly determine that those rights are null and void for someone who has not taken up arms with the enemy. This is fundamental; a 2006 law-review article that generally supported military commissions was fairly unequivocal in agreeing with that conclusion: “Military commissions do not offer the guarantees of the Bill of Rights,” it says. “And, as a result, civilians cannot ordinarily be tried by military commission.”

Of course, that doesn’t mean that some pumped-up politician wouldn’t try to sneak someone who doesn’t belong—such as an American citizen—into the military commission. But that, according to the law-review article that ran in the *Boston University International Law Journal,*would simply put any conviction at risk of reversal.

It is, however, at least conceivable that an individual who has not associated himself with an armed enemy sufficiently enough to qualify as a combatant could be designated for trial by military commission. In such a case it is doubtful whether the trial of a genuine non-combatant by military commission would survive scrutiny, assuming that the proceedings were conducted in a place otherwise subject to the jurisdiction of the federal courts.

So, let’s look at the known circumstances surrounding the Boston Marathon bombing case. The surviving suspect, Tsarnaev, is of Chechnyan descent and was born in Kyrgyzstan, a landlocked country in Central Asia. He came to the United States at the age of eight, and there is no indication that he returned or had contact with any suspected terrorists other than his brother. At this point, there is little to establish his actual motivation, although it is reasonable to suspect that it is connected to Islamist beliefs. But *that,*under the rules established by Bush, is not enough to declare someone an enemy combatant. Motivations, as opposed to actual associations with the enemy, are not included as a basis for holding someone to be an unlawful combatant.

Fortunately, the Obama administration stuck to the law and the precedent established during the Bush years and did not put the expected prosecution of Tsarnaev at risk for cheap political points.

Now if only the Republicans could start loving America more than they hate Obama, and stop kicking around our national security like some political plaything, we can fight terrorism instead of each other.